What to Consider When Considering Issue Certification

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By Perry Cooper

Sept. 1 — Friendly advice to class plaintiffs' attorneys: Tell the court early if you want to certify an issue for classwide treatment, and be precise about what you want certified.

Issue certification, allowed by Fed. R. Civ. P. 23(c)(4), involves carving up a class suit so that some, but not all, common issues are decided on a classwide basis.

Often that means a bifurcated proceeding: a court will be tasked with ruling on the defendant's liability, or parts of that liability. Individual damages questions will be left for a later phase of the trial, or subsequent individual actions.

Courts commonly use issues classes, even when they don't call them that or cite Rule 23(c)(4), plaintiffs' attorney Russell Jackson of Jackson Advocates LLC in St. Louis said.

Rebecca S. Bjork, senior counsel at defense firm Seyfarth Shaw LLP in Washington, called the practice “an emerging area of the law.”

But she cautioned that the facts and legal issues at stake make each case different.

Here are some tips for winning issue certification if you are a plaintiffs' attorney, or fighting it if you represent defendants.

Tip #1: Plead It Early

If you, as a plaintiffs' attorney, think you will want to certify an issue rather than your whole suit, make sure you raise issue certification with the court early on, Jackson, who also teaches a course on complex litigation at Washington University in St. Louis, said.

Courts aren't sympathetic to plaintiffs who seek issue certification as a Hail Mary act of desperation when they see certification of the entire suit is looking unlikely, he said.

Defense attorney Andrew J. Trask of McGuire Woods in Los Angeles agreed that plaintiffs shouldn't shoot for issue certification just to save litigation that is going off the rails.

But he also cautioned that plaintiffs must raise it if they want it—courts are under no obligation to employ Rule 23(c)(4) on their own.

Tip #2: Carve at the Joint

“Issue certification needs to be surgical,” Trask said.

Plaintiffs' attorneys need to segregate common issues, paying attention to the elements of the causes of action, Jackson said.

That means “carving at the joint” to make sure the issue for certification is discrete and doesn't overlap with other issues, he said.

Bjork recommends providing the court with a specific proposal for how a particular issue can be separated out from other issues.

Tip #3: Know Your Jurisdiction

“It's critically important to review your jurisdiction” because there is a split among the federal appeals courts on issue certification, Trask said.

The big question—whether Rule 23(b)(3)'s predominance prong apply to the whole suit or just the issues class—is up for argument. That requirement mandates that common questions predominate over individual ones.

By Trask's count, the Second, Fourth and Ninth circuits allow issue certification even where certification would otherwise be impossible. The Seventh and Tenth circuits allow issue certification to sidestep damages problems. The Fifth Circuit says it's an option for housecleaning only.

But Jackson, the plaintiffs' attorney, said the approaches are similar, and the Fifth Circuit has softened its once hard-line approach.

The Fifth Circuit held in a 1996 product liability suit that the cause of action as a whole must satisfy the predominance requirement, in Castano v. Am. Tobacco Co., 84 F.3d 734 (5th Cir. 1996).

But more recently, the Fifth Circuit accepted the notion of issues classes without debate, Jackson said, referring to In re Deepwater Horizon, 739 F.3d 790 (5th Cir. 2014).

The conference committee considering amendments to Rule 23 initially proposed clarifying that predominance isn't a prerequisite to Rule 23(c)(4) issue certification (16 CLASS 516, 5/8/15).

But after push back from defense attorneys and professors, it ultimately dropped the proposal, Trask said.

The committee said there was sufficient agreement among the circuits. But Trask challenges that reasoning. Instead, he said, the committee shied away from the question because it's a “political hot potato” that divides plaintiffs' and defense counsel.

Tip #4: Have a Trial Plan

It's also important for attorneys on both sides of the “v” to have a trial plan, even if they hope the suit will settle, the attorneys said.

You have to work under the assumption that the suit will go to trial. How will this work practically after an issue is certified?

Bjork said “it all comes down to the brass tacks of how the class action would be tried.”

If you are a plaintiffs' attorney, you have to prove to the court that certifying an issue class would “materially advance the litigation.”

The purpose of issue certification is to make things simpler, Trask said.

If certifying an issue would only make complex litigation more complex, courts aren't going to go for it, he said. “It has to cut to the chase.”

Defendants can argue that the few issues that might be tried on a class basis don't outweigh the issues that must be tried individually, Trask said. In other words, a class action won't be superior under Rule 23(b)(3) if the court will be overwhelmed with damages inquiries.

He also advised plaintiffs to think through all of the practicalities: What will notice look like when class members may need to take further action after a finding of liability? What will and won't be precluded from being litigated later? Can issue certification be immediately appealed?

Attorneys have to think through every step of the litigation, Trask said.

The attorneys spoke at an Aug. 25 webinar on issue certification put on by Strafford Publications Inc.

To contact the reporter on this story: Perry Cooper in Washington at pcooper@bna.com

To contact the editor responsible for this story: Steven Patrick at spatrick@bna.com

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